Jurisprudence Immanuel Kant Essays

Immanuel Kant Essay

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"It is one thing ... To tolerate vice so long as it is inoffensive, and quite another to give it a legal right not only to exist, but to assert itself in the face of the world as an 'experiment in living' as good as another, and entitled to the same protection from law."

Consider the meaning of this statement. Reflect upon the extent to which you agree with it, providing evidence and argument to support your position.

In the ethical system of Immanuel Kant, an unconditional law that applies to all rational beings and is independent of any personal motive or desire is called the 'categorical imperative' It is: act only according to that maxim by which you can at the same time will that it should become a moral law. Effectively this system prohibits legal vice, but not vice per se; because toleration of vice may be moral; certain acts can be moral but still illegal. The distinction between the two is, to use Kant's terminology, categorical or technical. A categorical imperative is always legal, but this is not true of a technical imperative, which may be either legal or illegal. The idea of an experiment in living is analogous to Kant's categorical imperative, just as a toleration of the experiment is categorically imperative, but a legal right to vice is only technically imperative. In other words, a vice can never be construed as a legal right of a moral person, because it can not be willed by that person that it should become a moral law. This raises the question of the relationship between vice and morality. If to tolerate vice is moral, but the vice itself is immoral, then toleration must be moral. Indeed, toleration must be a categorical imperative. Vice is not a legal right, let alone entitled to protection from law, not because it must be tolerated, however; if it is inoffensive vice is an experiment in living. We have therefore another characteristic of moral law: inoffensiveness. An offensive vice would be immoral. According to the Kantian distinction, vice is against the moral law, because it can not be willed that it should become one. If vice were to assert itself in the face of the world as an 'experiment in living' we would be compelled, because of the categorical imperative, to deny it a legal right to exist. Thus we are left at a technical impasse, where to ascertain the meaning of the word legal; we have to equate it with moral. But this is precisely the crux of the Kantian distinction between the categorical and technical imperatives; the moral law is moral only because it conforms to the categorical, but not the technical imperative. An example of a moral, yet illegal act is toleration of offensive vice. Rather, its illegality may cause offence, if it leads to an immoral act, or it is an immoral act in itself. We could argue that the meaning of offence is equivalent to technical and the meaning of inoffensive equivalent to categorical, but the meaning must also consider moral law. An experiment in living may, for instance, be offensive or inoffensive. An experiment in living that is an inoffensive vice is a right that is moral and legal. Thus two conditions (morality and legality) must, therefore, attach themselves to a right, even before we can define vice. For a right to assert itself in the face of the world it must be moral and legal. A precondition of this is that it must be tolerated and inoffensive. Offence can be caused by lack of toleration, although only the assertion in the face of the world will cause offence such that intolerance is not given a legal right to exist. Therefore, intolerance is a vice and toleration is a moral law. Entitlement to protection from the law is another, distinct and separate, step in the argument. Legal protection is not necessary for vice because it is morally wrong, according to this - and Kant's - argument. Whether or not the vice is an experiment in living as good as another is a further consideration, since we are introduced to a concept of good vice. In summary, the meaning of the statement is dependent on the concept of toleration, vice, law, right, experiment in living, and good; we will show how Kant's categorical imperative, the foundation of moral law, makes this statement false.

Much of this argument on meaning follows Harris, who argues that:

Language is important because of the light it throws on the true nature of concepts: we discover what 'right' or 'duty' stand [sic] for by examining how such terms are employed

Having concepts clearly defined at the outset, together with the relationship between them, it becomes much easier to employ them. Curiously, Harris does not do so, however. The concept of a legal system is Raz's primary definition upon which he builds his jurisprudence. From it, he says that law has de facto authority, meaning that all authority for the law comes out of its definition as authoritative.

To build ourselves a concept of the meaning of the statement in the title, we must not only define the concepts of toleration, vice, law, right, experiment in living, and good; we must also use a concrete example of a vice, because this is the crucial definition which must be precise for us to understand the meaning of the whole phrase. In Kant's terminology, this is the act which either conforms to the categorical imperative.

Philip Harris argues succinctly:

Let me pick a simple example: murder. The moral obligation not to murder people derives from the fact that murdering people is morally wrong. The law may play an important part in deterring the immoral person by prudential incentives (sanctions - the first technique) or in simply declaring to the morally naive person what his moral obligations are (the second technique) but the moral reason anyone has not to murder persons is never derived from the fact that there is a law prohibiting the act.

We must agree that there is likely to be no improvement possible on this formulation. In his discussion of Raz's work, Harris goes on to say that friendship may be a metaphor for the law:

This argument is really quite simple. We accept in friendship that an affective attitude towards a particular person can result in us having obligations towards that person. So, for example, we may spend time with a particular friend because there is no better way to spend our time. However, we may also feel obligated to spend time with that person, even though we would rather curl up on our own with a good book, because he is feeling depressed and lonely at the moment.

Raz argues that respect for the law is analogous to friendship. There is no obligation to respect the law but (t)hose [sic] who respect the law have reasons which others have not. These persons express their respect for the law in obeying it ... and in avoiding questioning it on every occasion. As with friendship social conventions and cultural precepts partly determine the appropriate and fitting ways to express respect In short, by virtue of having a particular affective attitude one 'buys into' a set of obligations which reflect this attitude and one of these obligations, in the case of law, is obedience

Let us therefore take some examples of vice and try to apply Kant's categorical imperative to them to ascertain the possibility and efficacy of its practical application with regard to the law In the first instance, we must recognise that the quotation suggests three different, increasingly moral, levels; from illegality, to legality but immorality, to vice. Curiously, for the tolerant, morality is not relevant where an act is illegal, because the law is probably a greater deterrent. Kant's imperative argues that morality is the only judge of good or bad behaviour; for the ethicist law is irrelevant.

Our first example is riding a bicycle without a helmet. This is clearly a vice, but the law states it an illegality. The criminal law can be applied to cyclists who cycle without a helmet. It is preposterous to suggest that there is anything criminal about this act. Our second example is smoking. This is clearly a vice, but the law is silent on the matter of smoking and passive smoking. For smoking, we would have to rely on an idea of morality to prohibit the behaviour, because the law demands we tolerate it for monetary reasons. Thus Kant's categorical imperative could be applied to smokers. Our third example is the criminal law. Since the law permits a large number of people to make money from its application to criminal behaviour, we must conclude that the criminal law and the practise of it, is immoral, because money can be made from smoking, which is less moral than the criminal law.

At this point the principle of tolerance recedes into a meaningless quotation, with very little applicability to law or morality, or ethics. Harris puts a similar point forward:

In short, we cannot allow the actor to waive our assumed obligation to look after his dependants etc since he cannot waive their rights to social welfare. There is a difference between the agent waiving his rights and waiving his duties (or, another way of putting this, waiving the rights of others). I am not rejecting the harm principle here but, rather, I am suggesting that acceptance of the principle seems to leave us with still rather a lot to work out when it comes to the application of this principle to specific behaviours or sets of behaviours (are others 'harmed' if there is the possibility of persons copying the behaviour of the helmet less cyclist?). (Harris 2005, unpublished)

For the example of smoking, let us make a case for it to be criminalised, to assess the validity of our balanced conclusion of its criminality. According to Mill, only behaviour that harms persons other than the agent should be proscribed by legal force. Passive smoking falls into this category because smoking is odious and offensive and it stinks. It is harmful because it causes disease. However, if smoking is not tolerated, many people would suffer from a limited social life, since smoking is permitted in social meetings such as pubs, clubs, and restaurants. In Australia there has been introduced a law that prohibits smoking in public places or in front of buildings, therefore it is possible to criminalise the behaviour. The effect has been positive and the law has been, for the most part, obeyed.

A final point is the principle of tolerance of the law. We have shown how the law can sometimes, as in the case of riding a bicycle without a helmet, be too violently intrusive into the ordinary lives of men and women. The law must be tolerated, however, because to a large degree it assists men and women to carry out their lives safely and socially. To wear a bicycle helmet, whilst it may be unfashionable and look stupid, may prevent bicyclists' harm. I will wear a bicycle helmet for many of the same reasons I will not smoke. We must therefore only tolerate vice so long as it is not immoral. If we accept this rule then we will not passing off another's act as our own and we are living a moral life according to Kant's categorical imperative.

Bibliography

Harris, P., 2005. Course handbook, an Introduction to Legal Theory. Unpublished notes.
Harris, P., 2005. The Enforcement of Morality. Unpublished notes.
Kant, I., 1949. The Foundations of the Metaphysics of Morals, translated by Lewis W. Beck, edited by Robert P. Wolff, section 2.
Raz, Joseph, 1979. The Authority of Law: Essays on Law and Morality. Clarendon Press, Oxford.
Harris, J. W., 1997, Legal Philosophies, 2^nd edition. Butterworths, London, Edinburgh, Dublin.